{ "id": 4163351, "name": "HENRY J. WILKINS, Plaintiff v. CSX TRANSPORTATION, INC., Defendant", "name_abbreviation": "Wilkins v. CSX Transportation, Inc.", "decision_date": "2008-12-16", "docket_number": "No. COA08-181", "first_page": "338", "last_page": "344", "citations": [ { "type": "official", "cite": "194 N.C. App. 338" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "109 F. Supp. 2d 459", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11238251 ], "year": 2000, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/109/0459-01" ] }, { "cite": "486 F.2d 1018", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 222703 ], "year": 1973, "pin_cites": [ { "page": "1020", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/486/1018-01" ] }, { "cite": "204 F.2d 461", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1267970 ], "year": 1953, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/f2d/204/0461-01" ] }, { "cite": "375 U.S. 253", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11718947 ], "weight": 4, "year": 1963, "pin_cites": [ { "page": "254" }, { "page": "308-09" } ], "opinion_index": 0, "case_paths": [ "/us/375/0253-01" ] }, { "cite": "361 S.E.2d 734", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "737" } ], "opinion_index": 0 }, { "cite": "321 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570712 ], "year": 1987, "pin_cites": [ { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0001-01" ] }, { "cite": "874 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8342994 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "362" }, { "page": "362" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/ne2d/874/0357-01" ] }, { "cite": "787 F.2d 1309", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1560465 ], "year": 1986, "pin_cites": [ { "page": "1314" } ], "opinion_index": 0, "case_paths": [ "/f2d/787/1309-01" ] }, { "cite": "549 U.S. 158", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3553571 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/us/549/0158-01" ] }, { "cite": "45 U.S.C. \u00a7 53", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "18 F.3d 245", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10504671 ], "year": 1994, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/f3d/18/0245-01" ] }, { "cite": "352 U.S. 500", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6162070 ], "weight": 10, "year": 1957, "pin_cites": [ { "page": "504" }, { "page": "498" }, { "page": "506" }, { "page": "499" }, { "page": "508" }, { "page": "500" }, { "page": "506" }, { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/us/352/0500-01" ] }, { "cite": "45 U.S.C. \u00a7 51", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "et seq.", "parenthetical": "\"FELA\"" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 710, "char_count": 15850, "ocr_confidence": 0.738, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13587529620452776 }, "sha256": "a052cfab6e0df6cfa987c25bc06b80c8187947fadf03853f87f239dc933b3a00", "simhash": "1:2733fe3aa6a65de3", "word_count": 2580 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and ELMORE concur." ], "parties": [ "HENRY J. WILKINS, Plaintiff v. CSX TRANSPORTATION, INC., Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nHenry J. Wilkins (\u201cplaintiff\u2019) sustained back injuries while working as a maintenance of way worker for CSX Transportation, Inc. (\u201cdefendant\u201d). He filed a complaint in Northampton County Superior Court under the Federal Employers\u2019 Liability Act 45 U.S.C. \u00a7 51 et seq. (\u201cFELA\u201d), which makes railroads liable to their employees for injuries \u201cresulting in whole or in part from the negligence\u201d of the railroad, \u00a751. Contributory negligence is not a bar to recovery under FELA, but damages are reduced \u201cin proportion to the amount of negligence attributable to\u201d the employee, \u00a753. Plaintiff was awarded $61,500 by a jury. Judge William C. Griffin (\u201cJudge Griffin\u201d) awarded an offset against the verdict of $7,437.90, an amount equal to what defendant had paid for plaintiff\u2019s injury in the form of \u201cTier II\u201d Railroad Retirement Board disability payments. This reduced plaintiff\u2019s recovery to $54,062.10, and judgment for that amount was entered by Judge Griffin on 10 September 2007.\nPlaintiff appeals Judge Griffin\u2019s order denying his motion for a directed verdict on the issue of contributory negligence as well as Judge Griffin\u2019s order offsetting his award for Railroad Retirement Board disability benefits he received. Defendant cross-appeals Judge Griffin\u2019s order denying their motion for a directed verdict on the issue of defendant\u2019s negligence. We find no error in part, and reverse the offset of plaintiff\u2019s award.\nPlaintiff was injured while performing his duties as a maintenance of way worker for defendant. On 27 August 2003, plaintiff was tasked with placing water coolers weighing an estimated 65-75 pounds onto machines for his coworkers. This task required water coolers to be removed from a pickup truck and manually loaded onto a platform on each machine. This was plaintiff\u2019s normal assignment and he was assisted by Willie Dailes (\u201cDailes\u201d) at the time of his injury, although plaintiff was normally assisted by C.A. Gillis (\u201cGillis\u201d) for this task.\nAt the time of his injury plaintiff and Dailes were attempting to lift a water cooler onto railroad machinery when Dailes unexpectedly dropped his side of the cooler. Plaintiff was pulled to the ground, injuring his back. Although plaintiff knew he had injured his back, he continued to work through the remainder of the week. Upon returning to work the following Monday, plaintiff was unable to continue working and reported his injury to his supervisor. Plaintiff was diagnosed with a lumbosacral sprain, and occupationally disabled due to his injuries.\nDefendant argues the trial court erred in denying their motion for a directed verdict on the issue of defendant\u2019s negligence. They argue that the evidence failed to establish the elements of foreseeability and breach of duty. We disagree.\nWe review this assignment of error de novo. In Rogers v. Missouri P. R. Co., 352 U.S. 500, 1 L. Ed. 2d 493 (1957) a railroad employee tasked with burning vegetation growing along the tracks was injured when a passing train fanned the flames around him causing him to retreat and fall causing serious injury. The Supreme Court, while recognizing that the trial court could have found for the Railroad on the issue of negligence, held that \u201cthe decision was exclusively for the jury to make.\u201d Id. at 504, 1 L. Ed. 2d at 498.\n\u201cUnder [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury... for which damages are sought.\u201d Id. at 506, 1 L. Ed. 2d at 499. \u201c[F]or practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit.\u201d Id. at 508, 1 L. Ed. 2d at 500.\nUnder FELA an employer is liable if an injury resulted \u201cin whole or in part from the negligence of any of the officers, agents, or employees of such carrier.\u201d 45 U.S.C. \u00a7 51. To uphold the trial court\u2019s order denying defendant\u2019s motion for a directed verdict we must find that defendant, through its employee \u201cplayed any part, however small\u201d in the injury suffered by plaintiff.\nDefendant argues that plaintiff\u2019s accident was not foreseeable, prohibiting a finding of negligence. We disagree. While \u201c [reasonable foreseeability of harm is an essential ingredient of FELA negligence,\u201d Brown v. CSX Transp., 18 F.3d 245, 249 (4th Cir. W. Va. 1994), this foreseeability analysis is not limited to the management of the employer railroad. Just as the negligence of employees is imputed to the employer railroad in FELA actions, so to is the foreseeability of harm. The question is not whether CSX management should have foreseen that loading water coolers in the maimer they were being loaded could result in injury, the question is whether Dailes should have foreseen that dropping the water cooler without warning could result in injury to plaintiff. This injury was foreseeable, and sufficient evidence was presented to allow the jury to determine if Dailes breached his duty to complete the lift, or alternatively, give warning to plaintiff that he would be unable to do so.\nPlaintiff argues that the trial court erred in denying his motion for a directed verdict on the issue of contributory negligence. We disagree.\nFELA provides that contributory negligence is not a bar to recovery, but merely diminishes the amount of damages recovered by the injured employee, essentially creating a comparative negligence structure. 45 U.S.C. \u00a7 53. In Norfolk Southern R. Co. v. Sorrell, the United States Supreme Court held that the causation standards for employer negligence and employee contributory negligence are the same. 549 U.S. 158, 166 L. Ed. 2d 638 (2007). To find error in the trial court\u2019s order we must find that the employee played no part, \u201ceven the slightest, in producing the injury.\u201d Rogers, 352 U.S. at 506, 1 L. Ed. 2d at 499. The defendant is entitled to an instruction on contributory negligence \u201cif there is any evidence at all of contributory negligence.\u201d Taylor v. Burlington N. R.R., 787 F.2d 1309, 1314 (9th Cir. 1986).\nThe trial testimony established that plaintiff had a safe procedure for handling the water coolers and that he voluntarily departed from this procedure. Plaintiff had a regularly assigned partner, Gillis, on the water crew to help him prepare and load the coolers. Plaintiff and Gillis performed this task together every morning. On the morning of the accident Gillis was on duty with plaintiff and sat in the truck while the water coolers were being unloaded.\nPlaintiff chose to depart from this procedure when he asked another employee who had never previously assisted with this task, to help load a cooler onto a high platform. This evidence alone is sufficient to meet the burden of showing any evidence of contributory negligence. The trial court did not err in instructing the jury on contributory negligence.\nPlaintiff argues that the trial court erred in offsetting plaintiff\u2019s recovery by the amount defendant had paid for Railroad Retirement Board Benefits received by plaintiff. We agree.\nFollowing the jury verdict and award, the court offset plaintiffs award by $7,437.90, an amount equal to the sum defendant paid into Tier II of the Railroad Retirement Account. The sum represented the amount of Tier II benefits the plaintiff had received through occupational disability and covered the time from the award of the benefits by the Railroad Retirement Board until the plaintiff qualified for a regular annuity under the Act. This was error.\nIn 1974, Congress enacted the current version of the Railroad Retirement Act, which altered the prior Act enacted in 1937. The Railroad Retirement Act establishes two tiers of benefits. Tier I benefits are roughly equivalent to Social Security benefits. Tier II \u201cprovides retirement benefits over and above social security benefits and operates similarly to other industrial pension systems.\u201d CSX Transp., Inc. v. Gardner, 874 N.E.2d 357, 362 (Ind. Ct. App. 2007). Railroad employees who are injured and unable to perform their duties may receive either an occupational disability annuity or a total disability annuity. 45 U.S.C \u00a7 231a(a)(1)(iv),(v). Payments under the Railroad Retirement Act are not based upon an injury due to the negligence of the railroad employer. To qualify for an occupational disability under the Railroad Retirement Act, the employee must have performed 240 months of railroad service and be permanently disabled from his normal railroad job, or be at least 60 years old with 120 months of service with the same level disability. A total disability is granted if the employee has at least 120 months of service and is disabled from all occupations. 45 U.S.C \u00a7 231a(a)(l). The amount of the annuity depends upon the length of the employee\u2019s railroad employment. Gardner, 874 N.E.2d at 362. Annuity payments by the Railroad Retirement Board are not subject to assignment, tax, legal process, or anticipation. 45 U.S.C \u00a7 231m(a).\nPlaintiff argues that the collateral source rule prohibits an offset of plaintiff\u2019s award. \u201cAccording to this rule a plaintiff\u2019s recovery may not be reduced because a source collateral to the defendant.. . paid the plaintiff\u2019s expenses. Cates v. Wilson, 321 N.C. 1, 5, 361 S.E.2d 734, 737 (1987).\nHistorically, courts have held that benefits received from the Railroad Retirement Board are from a collateral source and therefore not subject to setoff. However, the most influential case on the matter, Eichel v. New York Cent. R. Co., 375 U.S. 253, 11 L. Ed. 2d 307 (1963), was determined before the Railroad Retirement Board split the Railroad Retirement Act benefits into two tiers. Defendant argues that the Tier I benefits are comparable to the benefits as determined by Eichel, but the Tier II benefits are distinct, and not a collateral source as it is explained in Eichel, and therefore subject to setoff. We disagree.\nThe United States Supreme Court in Eichel held that \u201c[t]he Railroad Retirement Act is substantially a Social Security Act for employees of common carriers .... The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer, so they cannot be considered in mitigation of the damages caused by the employer.\u201d Id. at 254, 11 L. Ed. 2d at 308-09. The Eichel Court, in making this statement relied on New York, N. H. & H. R. Co. v. Leary, 204 F.2d 461, 468 (1st Cir. 1953), which held that offset was not authorized for these benefits because of the Social Security nature of the benefits, and because the benefits received were not directly attributable to contributions made by the employer. We must determine whether the form of the Tier II benefits under the revised Act are so significantly changed that the Eichel reasoning no longer applies.\nThe Railroad Retirement Act, at the time of the Eichel decision, was funded equally by taxes between employers and employees. Any shortfall in the fund was supplemented by additional taxes against the employers. Currently, the Railroad Retirement Act is funded in part by taxes paid by the employer and employee. The Tier I taxes equal Social Security tax rates. The Tier II rate varies and is higher for the employer than the employee. The remainder of the fund is made up of fund transfers under the financial interchange with the Social Security system, investment earnings from the trust fund, general revenue appropriations for vested due benefit payments, income taxes on benefits and a work hour tax paid by railroad employees under the Railroad Retirement Tax Act. Gardner, 874 N.E.2d at 362.\nUnder both the 1936 act, and under Tier II of the current act, benefits are available to employees regardless of the source of the injury that caused the disability. Under both schemes benefits are based on any disability despite the cause, and on the years of service the employee has accrued in the system.\nWhile the funding of Tier II benefits has changed, with the employer being responsible for a greater percentage of the cost, the purpose and availability of Tier II benefits has not changed in any significant way. Federal case law indicates that the latter is the more important factor. In determining whether a payment is from a collateral source, \u201ccourts should look at the purpose and nature of the fund and of the payments, and not merely at their source.\u201d Russo v. Matson Navigation Co., 486 F.2d 1018, 1020 (9th Cir. 1973) (internal citations and quotations omitted). \u201c[T]he collateral source rule depends less upon the source of the funds than upon the character of the benefits received.\u201d Reed v. E.I. du Pont de Nemours & Co., 109 F. Supp. 2d 459, 467 (S.D. W. Va. 2000).\nThe purpose and nature of Tier II benefits was not significantly changed by the 1974 amendment to the Act. Further, while the current Act places greater financial responsibility upon the employer for funding Tier II benefits, it does not change the nature of the payments, or the manner in which those payments will be apportioned to applicable employees.\nThe trial court erred in offsetting plaintiff\u2019s recovery by the amount defendant had paid for the Railroad Retirement Act benefits received by plaintiff. Plaintiff\u2019s payments from the Railroad Retirement Act were a collateral source, and were not subject to be offset. This portion of the trial court\u2019s judgment is reversed and this case is remanded for entry of judgment without the offset for the Tier II payments.\nNo error in part, reversed in part and remanded.\nJudges TYSON and ELMORE concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Shapiro, Cooper, Lewis & Appleton, P.C., by Randall E. Appleton; and John J. Korzen, for plaintiff-appellant/ cross-appellee.", "Millberg, Gordon & Stewart, P.L.L.C., by John C. Millberg and Jonathan P. Holbrook, for defendant-appellee/cross-appellant." ], "corrections": "", "head_matter": "HENRY J. WILKINS, Plaintiff v. CSX TRANSPORTATION, INC., Defendant\nNo. COA08-181\n(Filed 16 December 2008)\n1. Railroads\u2014 railroad worker \u2014 FELA action \u2014 foreseeability \u2014 directed verdict denied\nThe trial court did not err by denying defendant railroad\u2019s motion for a directed verdict on the issue of negligence in the injury of a railroad worker. The worker was injured while lifting a 65 to 75 pound water cooler when a co-worker dropped his side of the cooler; the injury was foreseeable by the co-worker and the foreseeability of harm is imputed from the . employee to the employer under the Federal Employers\u2019 Liability Act.\n2. Railroads\u2014 railroad worker \u2014 FELA action \u2014 lifting injury\u2014 voluntary change of partner \u2014 contributory negligence\nThe trial court did not err by denying plaintiff\u2019s motion for a directed verdict on the issue of contributory negligence where plaintiff was a railroad worker who injured his back when a coworker dropped his side of a water cooler that they were lifting. Plaintiff had a regularly assigned partner on the water crew but chose to ask for assistance from another employee who had never performed this task.\n3. Railroads\u2014 railroad worker \u2014 FELA action \u2014 offset to award \u2014 collateral source\nThe trial court erred by offsetting an award received by an injured railroad worker by the amount received for Railroad Retirement Board Benefits. Those payments were a collateral source and were not subject to being offset, despite defendant\u2019s contention that an amendment to the Railroad Retirement Act changed the funding of the benefits. The collateral source rule depends less upon the source of funds than the character of the benefits, and the purpose and nature of these benefits did not significantly change.\nAppeal by plaintiff and cross-appeal by defendant from a judgment entered 22 August 2007 by Judge William C. Griffin in Northampton County Superior Court. Heard in the Court of Appeals 27 August 2008.\nShapiro, Cooper, Lewis & Appleton, P.C., by Randall E. Appleton; and John J. Korzen, for plaintiff-appellant/ cross-appellee.\nMillberg, Gordon & Stewart, P.L.L.C., by John C. Millberg and Jonathan P. Holbrook, for defendant-appellee/cross-appellant." }, "file_name": "0338-01", "first_page_order": 370, "last_page_order": 376 }